인지의 소급효와 제3자 보호

Abstract

Article 860 of the Civil Act of the Republic of Korea, the body of which stipulates that “affiliation shall be retrospectively effective from the time of birth of the child,” offers protection to a child born out of wedlock, equal to that of as a child born within marriage, but the proviso to Article 860 states that “the right acquired by a third person shall not be prejudiced thereby,” which in effect also guarantees protection for a third person. In such cases arises the issue of defining the scope of “a third person” or “the right acquired by a third person” as protected by the aforementioned proviso to Article 860. First, in regard to the scope of “a third person” protected in accordance with the proviso to Article 860, the predominant view requires co-inheritors in the same rank to the affiliated child born out of wedlock and lower-ranking inheritors to be excluded from the definition of “a third person” in the proviso to Article 860. Although judicial precedents would corroborate the prevailing stance in excluding lower-ranking inheritors, there is no established consensus on whether to also exclude co-inheritors. However, it is the author’s interpretation that the definition of “a third person” protected in accordance with the proviso to Article 860 encompasses all persons excluding the recognizer and the affiliated child. There is no reason for the predominant view and judicial precedents that exclude co-inheritors in the same rank to an affiliated child born out of wedlock, as well as lower-ranking inheritors, from the scope of a third person. Secondly, for the purpose of the scope of “the right acquired by a third person” protected by the proviso to Article 860, the right of inheritance of a third person, such as co-inheritors or lower-ranking inheritors, is not protected in the case of affiliation by the inheritee in life. Since the right of inheritance enters into effect upon the commencement time of inheritance, that is, the time of the inheritee’s death, it is a matter of course that a child born out of wedlock who was already affiliated before the commencement of inheritance would become the heir. In contrast, in the case of affiliation after the death of the inheritee, since the retrospective effect of affiliation does not apply to third persons, such as co-inheritors or lower-ranking inheritors, a child born out of wedlock is not granted the status of an inheritor prior to affiliation. The child finally obtains the inheritor status after affiliation, but the inheritor status does not apply retrospectively. Therefore, the division or other disposition of inherited property prior to affiliation by other co-inheritors or lower-ranking inheritors retains validity through their status as inheritors, and remains valid regardless of whether the child born out of wedlock is subsequently affiliated. However, an affiliated child born out of wedlock may claim payment of the amount equivalent to his or her portion in inheritance against co-inheritors (Article 1014) or demand a return of unjust enrichment against lower-ranking inheritors. Naturally, the affiliated child may exercise full rights as an inheritor over inherited assets that remain without having been divided or disposed of by the time of affiliation. In the case of affiliation by a will, the effect of the will commences at the time of the testator’s death, and therefore a child born out of wedlock assumes the inheritor status from the commencement time of inheritance. In consequence, the division or other disposition of the inheritance by co-inheritors or lower-ranking inheritors in exclusion of a child born out of wedlock is invalid. Furthermore to the right of inheritance, the scope of protection of a third person’s right to inherited assets requires examination. In the case of affiliation prior to the death of the inheritee, a child born out of wedlock is granted the status of an inheritor upon the commencement time of inheritance, and therefore co-inheritors or lower-ranking inheritors cannot exercise the right to dispose of the inheritance in exclusion of the child, nor grant a third person rights to the inheritance. In contrast, in the case of affiliation posterior to the death of the inheritee, the disposal of inherited assets by other co-inheritors or lower-ranking inheritors before affiliation remains valid, as with the rights granted to a third person, notwithstanding affiliation after the death of the inheritee. However, supposing that the rights acquired by a third person prior to the affiliation were not granted by the heir apparent in an act of disposition but rather a claim subsequent to the acceptance of an obligation, which remains unfulfilled at the time of affiliation, the rights of the third person are not protected. In the case of the pre-affiliation performance of an inherited obligation by other co-inheritors or lower-ranking inheritors in the status of the inheritor, this act is valid as performance by the obligor, which is not modified to performance by a third person, notwithstanding the ensuing affiliation. In this case, co-inheritors or lower-ranking inheritors who fulfilled the performance may demand a return of unjust enrichment against a child born out of wedlock. When other co-inheritors or lower-ranking inheritors who retained the inheritor status before affiliation receive the performance of an inherited claim from a obligor, the performance is effective as performance toward a legitimate obligee, and the obligor no longer has an obligation. However, an affiliated child born out of wedlock may demand a return of unjust enrichment for the amount equivalent to the appropriate portion in inheritance against the co-inheritors or lower-ranking inheritors who have received performance.